83 Mich. 195 | Mich. | 1890
Upon the foreclosure of a mortgage executed by the defendants April 6, 1882, the surplus in excess of the amount due, including costs, was $1,375.50. Defendant Jacob A. Pratt thereupon filed a petition claiming one-half of this amount, and asking that it be decreed to him. The defendant Welborn answered said petition, and interposed two objections to petitioner's claim:
1. That he owned the land by virtue of a sheriff's sale upon execution, and deed in pursuance thereof.
2. That he holds an equitable lien upon the fund as against the petitioner.
The defendants Alfred Welborn and Jacob A. Pratt were tenants in common of the premises, which are described as lots 1 and 2 in block 48, and also lot 21 in block 49-¿-, in the village of Three Eivers. Upon lots 1 and 2 was a three-story building used as a hotel, and a two-story wooden building in the rear used as a dwelling-house, and a barn upon lot 21 used in connection with the hotel. They
It is well settled in this State that a homestead can be claimed by a tenant in common. Shepard v. Cross, 33 Mich. 98; Lozo v. Sutherland, 38 Id. 168; Sherrid v. Southwick, 43 Id. 518 (5 N. W. Rep. 1029); Tharp v. Allen, 46 Id. 389 (9 N. W. Rep. 443); Cleaver v. Bigelow, 61 Id. 47 (27 N. W. Rep. 851); Kruger v. Le Blanc, 75 Id. 424 (42 N. W. Rep. 853). It is equally well settled that a homestead can be claimed upon premises used partly for business and partly as a dwelling. Orr v. Shraft, 22 Mich. 260; Skinner v. Shannon, 44 Id. 87 (6 N. W. Rep. 108); Stanton v. Hitchcock, 64 Id. 328 (31 N. W. Rep. 400). Any reference to the authorities of other states upon these points is unnecessary.
But it is insisted that this building was occupied by petitioner and his family for the sole purpose of con
In Green v. Pierce, 60 Wis. 372 (19 N. W. Rep. 427),. the defendant, who claimed a homestead right, owned only a leasehold interest in the premises, and by the very terms of’ his lease it was provided that the premises-should be used only as a hotel and eating-house, and upon this ground alone the right to the homestead was; denied.
Defendant also insists that the statutory homestead is limited to one lot, and that this property covered two-lots; hence, that no homestead could be claimed without, a selection and designation of some portion as such. This is too narrow and technical a construction to place upon this beneficial statute. One who has constructed his house, which he occupies as a homestead, upon two lots, is not thereby to be deprived of his exemption. If
Defendant Welborn also claims that he has an equitable lien upon this money, because he says that Pratt promised to secure him by a mortgage upon the hotel property for debts due him from Pratt; that at the time they purchased the hotel property, each taking an undivided one-half, he (Welborn) paid a part of a mortgage given by Pratt, secured the balance, and discharged a mortgage which he himself had upon certain other hotel property; and that Pratt then promised that he would secure him by mortgage upon the hotel property in question at any time he felt insecure or wanted it. This claim is expressly denied by both Mr. and Mrs. Pratt, and we find nothing in the record to show a preponderance of evidence in favor of Welborn. But, aside from this, a verbal promise to give security cannot create a mortgage lien upon the homestead. Such holding would be in direct violation of the statute.
The decree of the court below, giving one-half of the surplus to the petitioner, must be affirmed, with costs of both courts. •